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The People v. Patrick Gitthens

December 6, 2012

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
PATRICK GITTHENS, DEFENDANT AND APPELLANT.



(Super. Ct. No. SF116785A)

The opinion of the court was delivered by: Robie , Acting P. J.

P. v. Gitthens CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Patrick Gitthens savagely attacked his roommate, 65-year-old Charsey Gray. After he was finished, defendant had his part pit bull dog attack Gray. Gray suffered lacerations to the back of her scalp, arms, and legs, a fractured bone in her hand, and swelling and bruising to her cheeks.

A jury found defendant guilty of: (1) assault by means of force likely to produce great bodily injury or with a deadly weapon; and (2) allowing a vicious animal at large. Additionally, the jury found two great bodily injury enhancements true as to each of these charges. The court found defendant had two strike priors. After dismissing one of his strikes, the court sentenced defendant to 15 years and 4 months in prison.

The court calculated defendant's sentence as follows: four years for the assault charge, doubled for the prior strike conviction, one-third the middle term of two years for the vicious animal charge, doubled for the prior strike conviction, and a consecutive three year term for each of the great bodily injury enhancements.

Defendant appeals, contending the trial court erred in: (1) admitting two statements made by defendant; (2) imposing a full middle term for the enhancement attached to the vicious animal charge; (3) allowing for multiple punishments for the same objective; and (4) failing to impose concurrent sentences.

The People cross-appeal, contending that the trial court erred in imposing the full middle term for the enhancement and erred in granting defendant's motion to dismiss one of his prior strikes.

We affirm, but direct the trial court to reduce the sentence for defendant's enhancement to one-third the enhancement term, or one year, pursuant to Penal Code section 1170.1, subdivision (a).

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and Gray lived together, where Gray rented a room from defendant for $200 per month. Defendant owned two dogs: a black Labrador and a pit bull mix. Gray got along with the dogs, but she knew that they were not supposed to be fed together because they fought over the food.

In January 2011, Gray was in her room when she heard a loud crash in the kitchen. When she went to inspect, she noticed the telephone was on the floor and no longer worked. Gray said to defendant: "Now, look what you did, stupid. You broke the house phone. Now what are we gonna do?" Gray then returned to her bedroom.

Defendant entered Gray's room holding a butcher's knife in one hand and a pipe or broomstick in the other, and said to her: "Call me stupid. You God damn bitch." Defendant then said: "I already killed one person this afternoon. One more isn't gonna matter." Defendant pushed Gray into the wall and kicked her on her side. Defendant poked at Gray with the knife, although he never touched her with it. Defendant hit Gray in the back of the head with the pole or broomstick, punched Gray in the face multiple times, then left the room. Gray shut her door and grabbed the pole, which defendant had dropped in her closet.

While she was in the closet, Gray heard a crash, then noticed that her bedroom door was gone. Defendant entered and kicked Gray, knocking her to the ground, and kicked her while she was down. While on the ground, Gray felt the back of her head and realized she was bleeding. Defendant then called the pit bull and told him to attack Gray.

During the dog's attack, Gray covered her face. The dog grabbed Gray's arms and legs, tore off her sweatshirt, and continued to bite Gray for one to two minutes. All the while, defendant urged the dog on, saying: "Kane, kill. Kane, attack." Gray did not think she was going to leave the house alive.

Gray tried to escape, but defendant dragged her into the living room, pushed her into an antique mirror, and hit her. Defendant said something to the dog in another language and then told Gray that he told the dog to kill her if she moved. Gray pet the dog until she realized defendant had left the house. At that point, Gray left the house. Defendant came around the corner as Gray got to the gate in front of the house.

At that time, Fane Davis was walking by the house. She heard defendant say: "Is that your nigger friend?" Davis heard Gray yelling and saw her running out of the house, where defendant was trying to put her in a headlock. Gray spun away and ran to Davis, asking for help. Gray told Davis that defendant had stabbed and "sicked the dog" on her, and was trying to kill her. Gray was wearing only a bra, jeans, and socks, and was covered in blood.

Defendant's version of the facts were substantially different. He testified at trial that he heard a commotion and the dogs barking. He assumed Gray was feeding them together, which he had warned her not to do. Defendant went to where he heard the commotion and saw the pit bull biting Gray's arm and Gray flinging a stick at the dog. Defendant eventually split up the dog and Gray and took the dog outside. He told Gray to wait in the living room while he went to a neighbor's house to call an ambulance, but before he got there, Gray ran past him and jumped the fence.

DISCUSSION

I

The Court Properly Admitted

Defendant's Two Statements

Defendant contends the trial court erred in admitting two of his statements on the grounds that they were inadmissible hearsay, not relevant, and unduly prejudicial. The two statements were: (1) "I already killed one person this afternoon. One more isn't ...


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